International students who hope to eventually earn an H1B visa and settle in the US often take part in Optional Practical Training (OPT), which is temporary employment directly related to an F1 student’s field of study. Participating in OPT can allow new graduates to remain in the US for 12-36 additional months (depending on field) while they gain work experience, which can sometimes lead directly to an H1B job offer.
USCIS has specific steps for applying for OPT, and all OPT positions must pay a base salary that is equal to or greater to what is paid to similarly employed US workers. However, these rules can become a little murky if the student is seeking OPT employment with a startup company.
Can You Work For a Startup on OPT?
The short answer is yes, but the long answer is a bit more complicated. The official word according to USCIS is this:
“…F–1 students seeking STEM OPT extensions may be employed by new “startup” businesses so long as all regulatory requirements are met, including that the employer adheres to the training plan requirements, remains in good standing with E-Verify, will provide compensation to the STEM OPT student commensurate to that provided to similarly situated U.S. workers, and has the resources to comply with the proposed training plan. For instance, alternative compensation may be allowed during a STEM OPT ..”
While this answer may seem fairly straightforward, it does not specifically address the fact that many employees of startups are paid in alternative ways rather than a salary. This can include stocks and stock options, or another system of profit sharing or employee ownership. To this point, USCIS has not provided specific guidance regarding valuation of alternative compensation. Should the OPT employee simply be offered the same compensation package as any other US employee? What if stock values change from when one employee is hired to the next? Once again, there is no clear guidance from USCIS.
If You Accept OPT Employment from a Startup
Should you decide to accept a position with a startup on OPT, bear in mind that it will be completely up to you and the employer to research and maintain compliance with all OPT program requirements. Ensure that they are keeping documentation of all records regarding your employment and your compensation, along with the method used for valuation of that compensation both for OPT employees and US employees.
Working for a startup on OPT can be well worth it due to the incredible opportunities it can afford, but you should proceed with caution to make sure that doing so will not jeopardize your OPT status.
